Legalize / United Kingdom / Public General Act

Environmental Protection Act 1990

Type Public General Act

Publication 1990-11-01

Last updated 2026-03-11

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(6) Subsection (3) above is subject to section 114 of the Environment Act 1995 (delegation or reference of appeals etc).

(7) The Secretary of State may give to the enforcing authorities directions as to specified information, or descriptions of information, which the public interest requires to be included in registers maintained under section 78R above notwithstanding that the information may be commercially confidential.

(8) Information excluded from a register shall be treated as ceasing to be commercially confidential for the purposes of this section at the expiry of the period of four years beginning with the date of the determination by virtue of which it was excluded; but the person who furnished it may apply to the authority for the information to remain excluded from the register on the ground that it is still commercially confidential and the authority shall determine whether or not that is the case.

(9) Subsections (3) to (6) above shall apply in relation to a determination under subsection (8) above as they apply in relation to a determination under subsection (2) above.

(10) Information is, for the purposes of any determination under this section, commercially confidential, in relation to any individual or person, if its being contained in the register would prejudice to an unreasonable degree the commercial interests of that individual or person.

(11) For the purposes of subsection (10) above, there shall be disregarded any prejudice to the commercial interests of any individual or person so far as relating only to the value of the contaminated land in question or otherwise to the ownership or occupation of that land.

Registers: removal of information about land designated as special site

78TA

(1) Subsection (2) applies where a local authority has entered in a register maintained under section 78R above particulars of or relating to notices mentioned in paragraph (e) or (f) of subsection (1) of that section.

(2) The local authority may remove the particulars from the register.

(3) Particulars may be removed under subsection (2) above only if—

(a) the Scottish Environment Protection Agency has given the local authority a notice under section 78Q(4) above that the land to which the notices relate is no longer land which is required to be designated as a special site; and

(b) the date specified in the notice given under that section has passed.

(4) Where a local authority removes particulars from a register under subsection (2) above, it must keep (in such form as it thinks fit) a record of—

(a) the particulars that have been removed;

(b) its reasons for removing them; and

(i) were originally entered in the register; and

(ii) were removed.

(5) Subsection (8) of section 78R above applies to records kept under subsection (4) above as it applies to registers maintained by enforcing authorities under that section; and for that purpose, the reference to entries is to be read as if it were a reference to information in such records.

(6) In performing its functions under subsection (4) above, a local authority must have regard to any guidance issued by the Scottish Ministers in accordance with section 78YA below.

(7) Where a local authority removes particulars from a register under subsection (2) above, it must give notice of such removal to—

(a) the Scottish Environment Protection Agency;

(b) any person who is the owner of land designated as a special site by a notice to which the particulars relate;

(d) each person—

(i) who appears to the Scottish Environment Protection Agency to be an appropriate person in relation to that land; and

(ii) in respect of whom details have been given by the Scottish Environment Protection Agency to the local authority sufficient to enable notice of such removal to be given; and

(e) each person who appears to the local authority to be an appropriate person in relation to that land.

Effect of removal of information from register

78TB

(1) Where a local authority removes particulars from a register under section 78TA(2) above—

(a) any remediation notice relating to the land ceases to have effect; and

(b) no proceedings may be begun against a person for an offence under section 78M(1) above in respect of any remediation notice relating to the land.

(2) In subsection (1), “the land” means land designated as a special site by a notice to which the particulars mentioned in that subsection relate.

Reports by the appropriate Agency on the state of contaminated land.

78U

(1) The appropriate Agency shall—

(a) from time to time, or

(b) if the Secretary of State at any time so requests,

prepare and publish a report on the state of contaminated land in England, Wales or Scotland , as the case may be.

(2) A local authority shall, at the written request of the appropriate Agency, furnish the appropriate Agency with such information to which this subsection applies as the appropriate Agency may require for the purpose of enabling it to perform its functions under subsection (1) above.

(3) The information to which subsection (2) above applies is such information as the local authority may have, or may reasonably be expected to obtain, with respect to the condition of contaminated land in its area, being information which the authority has acquired or may acquire in the exercise of its functions under this Part.

Site-specific guidance by the appropriate Agency concerning contaminated land.

78V

(1) The appropriate Agency may issue guidance to any local authority with respect to the exercise or performance of the authority’s powers or duties under this Part in relation to any particular contaminated land; and in exercising or performing those powers or duties in relation to that land the authority shall have regard to any such guidance so issued.

(2) If and to the extent that any guidance issued under subsection (1) above to a local authority is inconsistent with any guidance issued under this Part by the Secretary of State, the local authority shall disregard the guidance under that subsection.

(3) A local authority shall, at the written request of the appropriate Agency, furnish the appropriate Agency with such information to which this subsection applies as the appropriate Agency may require for the purpose of enabling it to issue guidance for the purposes of subsection (1) above.

(4) The information to which subsection (3) above applies is such information as the local authority may have, or may reasonably be expected to obtain, with respect to any contaminated land in its area, being information which the authority has acquired, or may acquire, in the exercise of its functions under this Part.

The appropriate Agency to have regard to guidance given by the Secretary of State.

78W

(1) The Secretary of State may issue guidance to the appropriate Agency with respect to the exercise or performance of that Agency’s powers or duties under this Part; and in exercising or performing those powers or duties the appropriate Agency shall have regard to any such guidance so issued.

(2) The duty imposed on the appropriate Agency by subsection (1) above is without prejudice to any duty imposed by any other provision of this Part on that Agency to act in accordance with guidance issued by the Secretary of State.

Supplementary provisions.

78X

(1) Where it appears to a local authority that two or more different sites, when considered together, are in such a condition, by reason of substances in, on or under the land, that—

(a) significant harm is being caused or there is a significant possibility of such harm being caused, or

(b) significant pollution of controlled waters is being caused or there is a significant possibility of such pollution being caused,

this Part shall apply in relation to each of those sites, whether or not the condition of the land at any of them, when considered alone, appears to the authority to be such that significant harm, or significant pollution of controlled waters, is being caused, or there is a significant possibility of such harm or pollution being caused.

(2) Where it appears to a local authority that any land outside, but adjoining or adjacent to, its area is in such a condition, by reason of substances in, on or under the land, that significant harm, or significant pollution of controlled waters, is being caused, or there is a significant possibility of such harm or pollution being caused within its area—

(a) the authority may, in exercising its functions under this Part, treat that land as if it were land situated within its area; and

(b) except in this subsection, any reference—

(i) to land within the area of a local authority, or

(ii) to the local authority in whose area any land is situated,

shall be construed accordingly;

but this subsection is without prejudice to the functions of the local authority in whose area the land is in fact situated.

(3) A person acting in a relevant capacity—

(a) shall not thereby be personally liable, under this Part, to bear the whole or any part of the cost of doing any thing by way of remediation, unless that thing is to any extent referable to substances whose presence in, on or under the contaminated land in question is a result of any act done or omission made by him which it was unreasonable for a person acting in that capacity to do or make; and

(b) shall not thereby be guilty of an offence under or by virtue of section 78M above unless the requirement which has not been complied with is a requirement to do some particular thing for which he is personally liable to bear the whole or any part of the cost.

(4) In subsection (3) above, “person acting in a relevant capacity” means—

(a) a person acting as an insolvency practitioner, within the meaning of section 388 of the Insolvency Act 1986 (including that section as it applies in relation to an insolvent partnership by virtue of any order made under section 421 of that Act);

(b) the official receiver acting in a capacity in which he would be regarded as acting as an insolvency practitioner within the meaning of section 388 of the Insolvency Act 1986 if subsection (5) of that section were disregarded;

(d) a person acting as a special manager under section 177 or 370 of the Insolvency Act 1986;

(e) the Accountant in Bankruptcy acting as trustee or interim trustee in a sequestration (within the meaning of the Bankruptcy (Scotland) Act 2016 );

(f) a person acting as a receiver or receiver and manager—

(i) under or by virtue of any enactment; or

(ii) by virtue of his appointment as such by an order of a court or by any other instrument.

(5) Regulations may make different provision for different cases or circumstances.

Application to the Isles of Scilly.

78Y

(1) Subject to the provisions of any order under this section, this Part shall not apply in relation to the Isles of Scilly.

(2) The Secretary of State may, after consultation with the Council of the Isles of Scilly, by order provide for the application of any provisions of this Part to the Isles of Scilly; and any such order may provide for the application of those provisions to those Isles with such modifications as may be specified in the order.

(3) An order under this section may—

(a) make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and

(b) contain such supplemental, consequential and transitional provision as the Secretary of State considers appropriate, including provision saving provision repealed by or under any enactment.

Supplementary provisions with respect to guidance by the Secretary of State.

78YA

(1) Any power of the Secretary of State to issue guidance under this Part shall only be exercisable after consultation with the appropriate Agency and such other bodies or persons as he may consider it appropriate to consult in relation to the guidance in question.

(2) A draft of any guidance proposed to be issued under section 78A(2) or (5), 78B(2) or 78F(6) or (7) above shall be laid before each House of Parliament and the guidance shall not be issued until after the period of 40 days beginning with the day on which the draft was so laid or, if the draft is laid on different days, the later of the two days.

(3) If, within the period mentioned in subsection (2) above, either House resolves that the guidance, the draft of which was laid before it, should not be issued, the Secretary of State shall not issue that guidance.

(4) In reckoning any period of 40 days for the purposes of subsection (2) or (3) above, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(4A) Subsections (2) to (4) shall not apply in respect of a draft of any guidance to be issued under section 78A(2) or (5), 78B(2) or 78F(6) or (7) above which relates only to Scotland and such a draft, and a draft of any guidance referred to in section 78QA(8) or section 78TA(6) above, shall be laid before the Scottish Parliament and shall not be issued until after the end of the period of 40 days beginning with the day on which the draft was so laid.

(4B) If within the period mentioned in subsection (4A) above the Scottish Parliament resolves that the guidance, the draft of which was laid before it, should not be issued, the Scottish Ministers shall not issue that guidance.

(4C) In reckoning any period of 40 days for the purposes of subsection (4A) or (4B) above no account shall be taken of any time during which the Scottish Parliament is dissolved or is in recess for more than 4 days.

(5) The Secretary of State shall arrange for any guidance issued by him under this Part to be published in such manner as he considers appropriate.

Interaction of this Part with other enactments.

78YB

(1) This Part shall not apply if and to the extent that—

(a) any significant harm, or pollution of controlled waters, by reason of which land would otherwise fall to be regarded as contaminated, is attributable to the operation of a regulated facility; and

(b) enforcement action may be taken in relation to that harm or significant pollution.

(3) If, in a case falling within subsection (1) or (7) of section 59 , section 59ZA(1), 59ZB(1) or (8) or 59ZC(1) above, the land in question is contaminated land, or becomes such land by reason of the deposit , keeping or disposal of the controlled waste in question, a remediation notice shall not be served in respect of that land by reason of that waste or any consequences of its deposit , keeping or disposal, if and to the extent that it appears to the enforcing authority that the powers of a waste regulation authority or waste collection authority under section 59, 59ZA, 59ZB or 59ZC (as the case may be) may be exercised in relation to that waste or the consequences of its deposit , keeping or disposal.

(4) No remediation notice shall require a person to do anything the effect of which would be to impede or prevent the making of a discharge in pursuance of an environmental permit or, in relation to Scotland, in pursuance of a consent given under Part II of the Control of Pollution Act 1974.

(5) In this section—

“enforcement action” means action under regulation 36, 37 or 42 of the Environmental Permitting (England and Wales) Regulations 2016 (S.I. 2016/1154) ;

“regulated facility” has the meaning given in regulation 8 of those Regulations.

This Part and radioactivity.

78YC

Except as provided by regulations, nothing in this Part applies in relation to harm, or pollution of controlled waters, so far as attributable to any radioactivity possessed by any substance; but regulations may—

(a) provide for prescribed provisions of this Part to have effect with such modifications as the Secretary of State considers appropriate for the purpose of dealing with harm, or pollution of controlled waters, so far as attributable to any radioactivity possessed by any substances; or

(b) make such modifications of the Environmental Permitting (England and Wales) Regulations 2016 (S.I. 2016/1154) or any Act or other enactment as the Secretary of State considers appropriate.

Part III — Statutory Nuisances and Clean Air

Statutory nuisances . . .

Statutory nuisances and inspections therefor.

79

(1) Subject to subsections (1A) to (6A) below, the following matters constitute “statutory nuisances” for the purposes of this Part, that is to say—

(a) any premises in such a state as to be prejudicial to health or a nuisance;

(b) smoke emitted from premises so as to be prejudicial to health or a nuisance;

(d) any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;

(e) any accumulation or deposit which is prejudicial to health or a nuisance;

(f) any animal kept in such a place or manner as to be prejudicial to health or a nuisance;

(fa) any insects emanating from relevant industrial, trade or business premises and being prejudicial to health or a nuisance;

(fb) artificial light emitted from premises so as to be prejudicial to health or a nuisance;

(g) noise emitted from premises so as to be prejudicial to health or a nuisance;

(ga) noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street or in Scotland, road;

(h) any other matter declared by any enactment to be a statutory nuisance;

and it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with under section 80 below or sections 80 and 80A below and, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint.

(1A) No matter shall constitute a statutory nuisance to the extent that it consists of, or is caused by, any land being in a contaminated state.

(1B) Land is in a “contaminated state” for the purposes of subsection (1A) above if, and only if, it is in such a condition, by reason of substances in, on or under the land, that—

(a) harm is being caused or there is a possibility of harm being caused; or

(b) pollution of controlled waters is being, or is likely to be, caused;

and in this subsection “harm”, “pollution of controlled waters” and “substance” have the same meaning as in Part IIA of this Act.

(2) Subsection (1)(b) , (fb) and (g) above do not apply in relation to premises—

(a) occupied on behalf of the Crown for naval, military or air force purposes or for the purposes of the department of the Secretary of State having responsibility for defence, or

(b) occupied by or for the purposes of a visiting force;

and “visiting force” means any such body, contingent or detachment of the forces of any country as is a visiting force for the purposes of any of the provisions of the Visiting Forces Act 1952.

(3) Subsection (1)(b) above does not apply to—

(i) smoke emitted from a chimney of a private dwelling within a smoke control area in Wales,

(ii) dark smoke emitted from a chimney of a building or a chimney serving the furnace of a boiler or industrial plant attached to a building or for the time being fixed to or installed on any land,

(iii) smoke emitted from a railway locomotive steam engine, or

(iv) dark smoke emitted otherwise than as mentioned above from industrial or trade premises.

(4) Subsection (1)(c) above does not apply in relation to premises other than private dwellings.

(5) Subsection (1)(d) above does not apply to steam emitted from a railway locomotive engine.

(5A) Subsection (1)(fa) does not apply to insects that are wild animals included in Schedule 5 to the Wildlife and Countryside Act 1981 (animals which are protected), unless they are included in respect of section 9(5) of that Act only.

(5B) Subsection (1)(fb) does not apply to artificial light emitted from—

(a) an airport;

(b) harbour premises;

(d) tramway premises;

(e) a bus station and any associated facilities;

(f) a public service vehicle operating centre;

(g) a goods vehicle operating centre;

(h) a lighthouse;

(i) a prison.

(6) Subsection (1)(g) above does not apply to noise caused by aircraft other than model aircraft.

(6A) Subsection (1)(ga) above does not apply to noise made—

(a) by traffic,

(b) by any naval, military or air force of the Crown or by a visiting force (as defined in subsection (2) above), or

(7) In this Part—

“airport” has the meaning given by section 95 of the Transport Act 2000;

“appropriate person” means—in relation to England, the Secretary of State;in relation to Wales, the National Assembly for Wales;

“associated facilities”, in relation to a bus station, has the meaning given by section 83 of the Transport Act 1985;

“bus station” has the meaning given by section 83 of the Transport Act 1985;

“chimney” includes structures and openings of any kind from or through which smoke may be emitted;

“dust” does not include dust emitted from a chimney as an ingredient of smoke;

“equipment” includes a musical instrument;

“fumes” means any airborne solid matter smaller than dust;

“gas” includes vapour and moisture precipitated from vapour;

“goods vehicle operating centre”, in relation to vehicles used under an operator's licence, means a place which is specified in the licence as an operating centre for those vehicles, and for the purposes of this definition “operating centre” and “operator's licence” have the same meaning as in the Goods Vehicles (Licensing of Operators) Act 1995;

“harbour premises” means premises which form part of a harbour area and which are occupied wholly or mainly for the purposes of harbour operations, and for the purposes of this definition “harbour area” and “harbour operations” have the same meaning as in Part 3 of the Aviation and Maritime Security Act 1990;

“industrial, trade or business premises” means premises used for any industrial, trade or business purposes or premises not so used on which matter is burnt in connection with any industrial, trade or business process, and premises are used for industrial purposes where they are used for the purposes of any treatment or process as well as where they are used for the purposes of manufacturing;

“lighthouse” has the same meaning as in Part 8 of the Merchant Shipping Act 1995;

“local authority” means, subject to subsection (8) below,—in Greater London, a London borough council, the Common Council of the City of London and, as respects the Temples, the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple respectively;in England and Wales outside Greater London, a district council; . . .in Wales, a county council or county borough council;the Council of the Isles of Scilly; andin Scotland, a district or islands council or a council constituted under section 2 of the Local Government etc (Scotland) Act 1994;

“noise” includes vibration;

“person responsible”—in relation to a statutory nuisance, means the person to whose act, default or sufferance the nuisance is attributable;in relation to a vehicle, includes the person in whose name the vehicle is for the time being registered under the Vehicle Excise and Registration Act 1994 and any other person who is for the time being the driver of the vehicle;in relation to machinery or equipment, includes any person who is for the time being the operator of the machinery or equipment;

“prejudicial to health” means injurious, or likely to cause injury, to health;

“premises” includes land and, subject to subsection (12) and , in relation to England and Wales, section 81A(9) below, any vessel;

“prison” includes a young offender institution;

“private dwelling” means any building, or part of a building, used or intended to be used, as a dwelling;

“public service vehicle operating centre”, in relation to public service vehicles used under a PSV operator's licence, means a place which is an operating centre of those vehicles, and for the purposes of this definition “operating centre”, “PSV operator's licence” and “public service vehicle” have the same meaning as in the Public Passenger Vehicles Act 1981;

“railway premises” means any premises which fall within the definition of “light maintenance depot”, “network”, “station” or “track” in section 83 of the Railways Act 1993;

“relevant separate railway premises” has the meaning given by subsection (7A);

“road” has the same meaning as in Part IV of the New Roads and Street Works Act 1991;

“smoke” includes soot, ash, grit and gritty particles emitted in smoke;

“street” means a highway and any other road, footway, square or court that is for the time being open to the public;

“tramway premises” means any premises which, in relation to a tramway, are the equivalent of the premises which, in relation to a railway, fall within the definition of “light maintenance depot”, “network”, “station” or “track” in section 83 of the Railways Act 1993;

and any expressions used in this section and in the Clean Air Act 1993 have the same meaning in this section as in that Act and section 3 of the Clean Air Act 1993 shall apply for the interpretation of the expression “dark smoke” and the operation of this Part in relation to it.

(7A) Railway premises are relevant separate railway premises if—

(a) they are situated within—

(i) premises used as a museum or other place of cultural, scientific or historical interest, or

(ii) premises used for the purposes of a funfair or other entertainment, recreation or amusement, and

(b) they are not associated with any other railway premises.

(7B) For the purposes of subsection (7A)—

(a) a network situated as described in subsection (7A)(a) is associated with other railway premises if it is connected to another network (not being a network situated as described in subsection (7A)(a));

(b) track that is situated as described in subsection (7A)(a) but is not part of a network is associated with other railway premises if it is connected to track that forms part of a network (not being a network situated as described in subsection (7A)(a));

(c) a station or light maintenance depot situated as described in subsection (7A)(a) is associated with other railway premises if it is used in connection with the provision of railway services other than services provided wholly within the premises where it is situated.

In this subsection “light maintenance depot”, “network”, “railway services”, “station” and “track” have the same meaning as in Part 1 of the Railways Act 1993.

(7C) In this Part “relevant industrial, trade or business premises” means premises that are industrial, trade or business premises as defined in subsection (7), but excluding—

(a) land used as arable, grazing, meadow or pasture land,

(b) land used as osier land, reed beds or woodland,

(d) land forming part of an agricultural unit, not being land falling within any of paragraphs (a) to (c), where the land is of a description prescribed by regulations made by the appropriate person, and

(e) land included in a site of special scientific interest (as defined in section 52(1) of the Wildlife and Countryside Act 1981),

and excluding land covered by, and the waters of, any river or watercourse, that is neither a sewer nor a drain, or any lake or pond.

(7D) For the purposes of subsection (7C)—

“agricultural” has the same meaning as in section 109 of the Agriculture Act 1947;

“agricultural unit” means land which is occupied as a unit for agricultural purposes;

“drain” has the same meaning as in the Water Resources Act 1991;

“lake or pond” has the same meaning as in section 104 of that Act;

“sewer” has the same meaning as in that Act.

(8) Where, by an order under section 2 of the Public Health (Control of Disease) Act 1984, a port health authority has been constituted for any port health district, or in Scotland where by an order under section 172 of the Public Health (Scotland) Act 1897 a port local authority or a joint port local authority has been constituted for the whole or part of a port, the port health authority , port local authority or joint port local authority, as the case may be shall have by virtue of this subsection, as respects its district, the functions conferred or imposed by this Part in relation to statutory nuisances other than a nuisance falling within paragraph (fb),(g) or (ga) of subsection (1) above and no such order shall be made assigning those functions; and “local authority” and “area” shall be construed accordingly.

(9) In this Part “best practicable means” is to be interpreted by reference to the following provisions—

(a) “practicable” means reasonably practicable having regard among other things to local conditions and circumstances, to the current state of technical knowledge and to the financial implications;

(b) the means to be employed include the design, installation, maintenance and manner and periods of operation of plant and machinery, and the design, construction and maintenance of buildings and structures;

(d) the test is to apply only so far as compatible with safety and safe working conditions, and with the exigencies of any emergency or unforeseeable circumstances;

and, in circumstances where a code of practice under section 71 of the Control of Pollution Act 1974 (noise minimisation) is applicable, regard shall also be had to guidance given in it.

(10) A local authority shall not without the consent of the Secretary of State institute summary proceedings under this Part in respect of a nuisance falling within paragraph (b), (d) , (e) , (fb) or (g)and, in relation to Scotland, paragraph (ga), of subsection (1) above if proceedings in respect thereof might be instituted under Part I of the Alkali &c. Works Regulation Act 1906 or section 5 of the Health and Safety at Work etc. Act 1974.or under regulations under section 2 of the Pollution Prevention and Control Act 1999.

(11) The area of a local authority which includes part of the seashore shall also include for the purposes of this Part the territorial sea lying seawards from that part of the shore; and subject to subsection (12) and , in relation to England and Wales, section 81A(9) below, this Part shall have effect, in relation to any area included in the area of a local authority by virtue of this subsection—

(a) as if references to premises and the occupier of premises included respectively a vessel and the master of a vessel; and

(b) with such other modifications, if any, as are prescribed in regulations made by the Secretary of State.

(12) A vessel powered by steam reciprocating machinery is not a vessel to which this Part of this Act applies.

Summary proceedings for statutory nuisances.

80

(1) Subject to subsection (2A) where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the authority, the local authority shall serve a notice (“an abatement notice”) imposing all or any of the following requirements—

(a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence;

(b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes,

and the notice shall specify the time or times within which the requirements of the notice are to be complied with.

(2) Subject to section 80A(1) below, the abatement notice shall be served—

(a) except in a case falling within paragraph (b) or (c) below, on the person responsible for the nuisance;

(b) where the nuisance arises from any defect of a structural character, on the owner of the premises;

(c) where the person responsible for the nuisance cannot be found or the nuisance has not yet occurred, on the owner or occupier of the premises.

(2A) Where a local authority is satisfied that a statutory nuisance falling within paragraph (g) of section 79(1) above exists, or is likely to occur or recur, in the area of the authority, the authority shall—

(a) serve an abatement notice in respect of the nuisance in accordance with subsections (1) and (2) above; or

(b) take such other steps as it thinks appropriate for the purpose of persuading the appropriate person to abate the nuisance or prohibit or restrict its occurrence or recurrence.

(2B) If a local authority has taken steps under subsection (2A)(b) above and either of the conditions in subsection (2C) below is satisfied, the authority shall serve an abatement notice in respect of the nuisance.

(2C) The conditions are—

(a) that the authority is satisfied at any time before the end of the relevant period that the steps taken will not be successful in persuading the appropriate person to abate the nuisance or prohibit or restrict its occurrence or recurrence;

(b) that the authority is satisfied at the end of the relevant period that the nuisance continues to exist, or continues to be likely to occur or recur, in the area of the authority.

(2D) The relevant period is the period of seven days starting with the day on which the authority was first satisfied that the nuisance existed, or was likely to occur or recur.

(2E) The appropriate person is the person on whom the authority would otherwise be required under subsection (2A)(a) above to serve an abatement notice in respect of the nuisance.

(3) A person served with an abatement notice may appeal against the notice to a magistrates’ court or in Scotland, the sheriff within the period of twenty-one days beginning with the date on which he was served with the notice.

(4) If a person on whom an abatement notice is served, without reasonable excuse, contravenes or fails to comply with any requirement or prohibition imposed by the notice, he shall be guilty of an offence.

(5) Except in a case falling within subsection (6) below, a person who commits an offence under subsection (4) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale together with a further fine of an amount equal to one-tenth of the greater of £5,000 or level 4 on the standard scale for each day on which the offence continues after the conviction.

(6) A person who commits an offence under subsection (4) above on industrial, trade or business premises shall be liable on summary conviction to a fine.

(7) Subject to subsection (8) below, in any proceedings for an offence under subsection (4) above in respect of a statutory nuisance it shall be a defence to prove that the best practicable means were used to prevent, or to counteract the effects of, the nuisance.

(8) The defence under subsection (7) above is not available—

(a) in the case of a nuisance falling within paragraph (a), (d), (e), (f) , (fa) or (g) of section 79(1) above except where the nuisance arises on industrial, trade or business premises;

(aza) in the case of a nuisance falling within paragraph (fb) of section 79(1) above except where—

(i) the artificial light is emitted from industrial, trade or business premises, or

(ii) the artificial light (not being light to which sub-paragraph (i) applies) is emitted by lights used for the purpose only of illuminating an outdoor relevant sports facility;

(aa) in the case of a nuisance falling within paragraph (ga) of section 79(1) above except where the noise is emitted from or caused by a vehicle, machinery or equipment being used for industrial, trade or business purposes;

(b) in the case of a nuisance falling within paragraph (b) of section 79(1) above except where the smoke is emitted from a chimney; and

(8A) For the purposes of subsection (8)(aza) a relevant sports facility is an area, with or without structures, that is used when participating in a relevant sport, but does not include such an area comprised in domestic premises.

(8B) For the purposes of subsection (8A) “relevant sport” means a sport that is designated for those purposes by order made by the Secretary of State, in relation to England, or the National Assembly for Wales, in relation to Wales.

A sport may be so designated by reference to its appearing in a list maintained by a body specified in the order.

(8C) In subsection (8A) “domestic premises” means—

(a) premises used wholly or mainly as a private dwelling, or

(b) land or other premises belonging to, or enjoyed with, premises so used.

(9) In proceedings for an offence under subsection (4) above in respect of a statutory nuisance falling within paragraph (g) or (ga)of section 79(1) above where the offence consists in contravening requirements imposed by virtue of subsection (1)(a) above it shall be a defence to prove—

(a) that the alleged offence was covered by a notice served under section 60 or a consent given under section 61 or 65 of the Control of Pollution Act 1974 (construction sites, etc); or

(b) where the alleged offence was committed at a time when the premises were subject to a notice under section 66 of that Act (noise reduction notice), that the level of noise emitted from the premises at that time was not such as to a constitute a contravention of the notice under that section; or

(c) where the alleged offence was committed at a time when the premises were not subject to a notice under section 66 of that Act, and when a level fixed under section 67 of that Act (new buildings liable to abatement order) applied to the premises, that the level of noise emitted from the premises at that time did not exceed that level.

(10) Paragraphs (b) and (c) of subsection (9) above apply whether or not the relevant notice was subject to appeal at the time when the offence was alleged to have been committed.

Fixed penalty notice: supplemental

80ZA

(1) This section applies to a fixed penalty notice given under section 80(4A).

(2) A fixed penalty notice must give reasonable particulars of the circumstances alleged to constitute the offence.

(3) A fixed penalty notice must also state—

(a) the amount of the fixed penalty;

(b) the period within which it may be paid;

(i) person to whom; and

(ii) address at which,

payment may be made;

(d) the method or methods by which payment may be made;

(e) the consequences of not making a payment within the period for payment.

(4) The amount of the fixed penalty under section 80(4A) is—

(a) in the case of a nuisance relating to industrial, trade or business premises, £400;

(b) in any other case, £150.

(5) The period for payment of the fixed penalty is 14 days beginning with the day after the day on which the notice is given.

(6) The local authority may extend the period for paying the fixed penalty in any particular case if they consider it appropriate to do so by sending notice to the person to whom the fixed penalty notice was given.

(7) No proceedings for an offence under section 80(4) may be commenced before the end of the period for payment of the fixed penalty.

(8) In proceedings for an offence under section 80(4), a certificate which—

(a) purports to be signed by or on behalf of a person having responsibility for the financial affairs of the local authority; and

(b) states that payment of the amount specified in the fixed penalty notice was or was not received by the expiry of the period within which that fixed penalty may be paid,

is sufficient evidence of the facts stated.

(9) Where proceedings for an offence in respect of which a fixed penalty notice has been given are commenced, the notice is to be treated as withdrawn.

(10) Any sum received by a local authority under section 80(4A) accrues to that authority.

(11) The Scottish Ministers may, by regulations—

(a) provide that fixed penalty notices may not be given in such circumstances as may be prescribed;

(b) provide for the form of a fixed penalty notice;

(d) modify subsection (4)(a) or (b) above so as to substitute a different amount (not exceeding level 2 on the standard scale) for the amount for the time being specified there;

(e) provide for the amount of the fixed penalty to be different in different cases or descriptions of case;

(f) modify subsection (5) above so as to substitute a different period for the period for the time being specified there;

(g) provide for the keeping of accounts, and the preparation and publication of statements of account relating to fixed penalties under section 80(4A).

(12) Before making regulations under subsection (11) above, the Scottish Ministers must consult, in so far as it is reasonably practicable to do so, the persons mentioned in subsection (13) below.

(13) Those persons are—

(a) such associations of local authorities; and

(b) such other persons,

as the Scottish Ministers consider appropriate.

Abatement notice in respect of noise in street.

80A

(1) In the case of a statutory nuisance within section 79(1)(ga) above that—

(a) has not yet occurred, or

(b) arises from noise emitted from or caused by an unattended vehicle or unattended machinery or equipment,

the abatement notice shall be served in accordance with subsection (2) below.

(2) The notice shall be served—

(a) where the person responsible for the vehicle, machinery or equipment can be found, on that person;

(b) where that person cannot be found or where the local authority determines that this paragraph should apply, by fixing the notice to the vehicle, machinery or equipment.

(3) Where—

(a) an abatement notice is served in accordance with subsection (2)(b) above by virtue of a determination of the local authority, and

(b) the person responsible for the vehicle, machinery or equipment can be found and served with a copy of the notice within an hour of the notice being fixed to the vehicle, machinery or equipment,

a copy of the notice shall be served on that person accordingly.

(4) Where an abatement notice is served in accordance with subsection (2)(b) above by virtue of a determination of the local authority, the notice shall state that, if a copy of the notice is subsequently served under subsection (3) above, the time specified in the notice as the time within which its requirements are to be complied with is extended by such further period as is specified in the notice.

(5) Where an abatement notice is served in accordance with subsection (2)(b) above, the person responsible for the vehicle, machinery or equipment may appeal against the notice under section 80(3) above as if he had been served with the notice on the date on which it was fixed to the vehicle, machinery or equipment.

(6) Section 80(4) above shall apply in relation to a person on whom a copy of an abatement notice is served under subsection (3) above as if the copy were the notice itself.

(7) A person who removes or interferes with a notice fixed to a vehicle, machinery or equipment in accordance with subsection (2)(b) above shall be guilty of an offence, unless he is the person responsible for the vehicle, machinery or equipment or he does so with the authority of that person.

(8) A person who commits an offence under subsection (7) above shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Supplementary provisions.

81

(1) Subject to subsection (1A) below, where more than one person is responsible for a statutory nuisance section 80 above shall apply to each of those persons whether or not what any one of them is responsible for would by itself amount to a nuisance.

(1A) In relation to a statutory nuisance within section 79(1)(ga) above for which more than one person is responsible (whether or not what any one of those persons is responsible for would by itself amount to such a nuisance), section 80(2)(a) above shall apply with the substitution of “any one of the persons” for “the person”.

(1B) In relation to a statutory nuisance within section 79(1)(ga) above caused by noise emitted from or caused by an unattended vehicle or unattended machinery or equipment for which more than one person is responsible, section 80A above shall apply with the substitution—

(a) in subsection (2)(a), of “any of the persons” for “the person” and of “one such person” for “that person”,

(b) in subsection (2)(b), of “such a person” for “that person”,

(d) in subsection (5), of “any person” for “the person”, and

(e) in subsection (7), of “a person” for “the person” and of “such a person” for “that person”.

(2) Where a statutory nuisance which exists or has occurred within the area of a local authority, or which has affected any part of that area, appears to the local authority to be wholly or partly caused by some act or default committed or taking place outside the area, the local authority may act under section 80 above as if the act or default were wholly within that area, except that any appeal shall be heard by a magistrates’ court or in Scotland, the sheriff having jurisdiction where the act or default is alleged to have taken place.

(3) Where an abatement notice has not been complied with the local authority may, whether or not they take proceedings for an offence or, in Scotland, whether or not proceedings have been taken for an offence, under section 80(4) above, abate the nuisance and do whatever may be necessary in execution of the notice.

(4) Any expenses reasonably incurred by a local authority in abating, or preventing the recurrence of, a statutory nuisance under subsection (3) above may be recovered by them from the person by whose act or default the nuisance was caused and, if that person is the owner of the premises, from any person who is for the time being the owner thereof; and the court or sheriff may apportion the expenses between persons by whose acts or defaults the nuisance is caused in such manner as the court consider or sheriff considers fair and reasonable.

(5) If a local authority is of opinion that proceedings for an offence under section 80(4) above would afford an inadequate remedy in the case of any statutory nuisance , they may, subject to subsection (6) below, take proceedings in the High Court or, in Scotland, in any court of competent jurisdiction, for the purpose of securing the abatement, prohibition or restriction of the nuisance, and the proceedings shall be maintainable notwithstanding the local authority have suffered no damage from the nuisance.

(6) In any proceedings under subsection (5) above in respect of a nuisance falling within paragraph (g) or (ga)of section 79(1) above, it shall be a defence to prove that the noise was authorised by a notice under section 60 or a consent under section 61 (construction sites) of the Control of Pollution Act 1974.

(7) The further supplementary provisions in Schedule 3 to this Act shall have effect.

Expenses recoverable from owner to be a charge on premises.

81A

(1) Where any expenses are recoverable under section 81(4) above from a person who is the owner of the premises there mentioned and the local authority serves a notice on him under this section—

(a) the expenses shall carry interest, at such reasonable rate as the local authority may determine, from the date of service of the notice until the whole amount is paid, and

(b) subject to the following provisions of this section, the expenses and accrued interest shall be a charge on the premises.

(2) A notice served under this section shall—

(a) specify the amount of the expenses that the local authority claims is recoverable,

(b) state the effect of subsection (1) above and the rate of interest determined by the local authority under that subsection, and

(3) On the date on which a local authority serves a notice on a person under this section the authority shall also serve a copy of the notice on every other person who, to the knowledge of the authority, has an interest in the premises capable of being affected by the charge.

(4) Subject to any order under subsection (7)(b) or (c) below, the amount of any expenses specified in a notice under this section and the accrued interest shall be a charge on the premises—

(a) as from the end of the period of twenty-one days beginning with the date of service of the notice, or

(b) where an appeal is brought under subsection (6) below, as from the final determination of the appeal,

until the expenses and interest are recovered.

(5) For the purposes of subsection (4) above, the withdrawal of an appeal has the same effect as a final determination of the appeal.

(6) A person served with a notice or copy of a notice under this section may appeal against the notice to the county court within the period of twenty-one days beginning with the date of service.

(7) On such an appeal the court may—

(a) confirm the notice without modification,

(b) order that the notice is to have effect with the substitution of a different amount for the amount originally specified in it, or

(8) A local authority shall, for the purpose of enforcing a charge under this section, have all the same powers and remedies under the Law of Property Act 1925, and otherwise, as if it were a mortgagee by deed having powers of sale and lease, of accepting surrenders of leases and of appointing a receiver.

(9) In this section—

“owner”, in relation to any premises, means a person (other than a mortgagee not in possession) who, whether in his own right or as trustee for any other person, is entitled to receive the rack rent of the premises or, where the premises are not let at a rack rent, would be so entitled if they were so let, and

“premises” does not include a vessel.

(10) This section does not apply to Scotland.

Payment of expenses by instalments.

81B

(1) Where any expenses are a charge on premises under section 81A above, the local authority may by order declare the expenses to be payable with interest by instalments within the specified period, until the whole amount is paid.

(2) In subsection (1) above—

“interest” means interest at the rate determined by the authority under section 81A (1) above, and

“the specified period” means such period of thirty years or less from the date of service of the notice under section 81A above as is specified in the order.

(3) Subject to subsection (5) below, the instalments and interest, or any part of them, may be recovered from the owner or occupier for the time being of the premises.

(4) Any sums recovered from an occupier may be deducted by him from the rent of the premises.

(5) An occupier shall not be required to pay at any one time any sum greater than the aggregate of—

(a) the amount that was due from him on account of rent at the date on which he was served with a demand from the local authority together with a notice requiring him not to pay rent to his landlord without deducting the sum demanded, and

(b) the amount that has become due from him on account of rent since that date.

(6) This section does not apply to Scotland.

Summary proceedings by persons aggrieved by statutory nuisances.

82

(1) A magistrates’ court may act under this section on a complaint or, in Scotland, the sheriff may act under this section on a summary application, made by any person on the ground that he is aggrieved by the existence of a statutory nuisance.

(2) If the magistrates’ court or, in Scotland, the sheriff is satisfied that the alleged nuisance exists, or that although abated it is likely to recur on the same premises or, in the case of a nuisance within section 79(1)(ga) above, in the same street or, in Scotland, road, the court or the sheriff shall make an order for either or both of the following purposes—

(a) requiring the defendant or, in Scotland, defender to abate the nuisance, within a time specified in the order, and to execute any works necessary for that purpose;

(b) prohibiting a recurrence of the nuisance, and requiring the defendant or defender, within a time specified in the order, to execute any works necessary to prevent the recurrence;

and , in England and Wales, may also impose on the defendant a fine not exceeding level 5 on the standard scale.

(3) If the magistrates’ court or the sheriff is satisfied that the alleged nuisance exists and is such as, in the opinion of the court or of the sheriff, to render premises unfit for human habitation, an order under subsection (2) above may prohibit the use of the premises for human habitation until the premises are, to the satisfaction of the court or of the sheriff, rendered fit for that purpose.

(4) Proceedings for an order under subsection (2) above shall be brought—

(a) except in a case falling within paragraph (b), (c) or (d) below, against the person responsible for the nuisance;

(b) where the nuisance arises from any defect of a structural character, against the owner of the premises;

(d) in the case of a statutory nuisance within section 79(1)(ga) above caused by noise emitted from or caused by an unattended vehicle or unattended machinery or equipment, against the person responsible for the vehicle, machinery or equipment.

(5) Subject to subsection (5A) below, where more than one person is responsible for a statutory nuisance, subsections (1) to (4) above shall apply to each of those persons whether or not what any one of them is responsible for would by itself amount to a nuisance.

(5A) In relation to a statutory nuisance within section 79(1)(ga) above for which more than one person is responsible (whether or not what any one of those persons is responsible for would by itself amount to such a nuisance), subsection (4)(a) above shall apply with the substitution of “each person responsible for the nuisance who can be found” for “the person responsible for the nuisance”.

(5B) In relation to a statutory nuisance within section 79(1)(ga) above caused by noise emitted from or caused by an unattended vehicle or unattended machinery or equipment for which more than one person is responsible, subsection (4)(d) above shall apply with the substitution of “any person” for “the person”.

(6) Before instituting proceedings for an order under subsection (2) above against any person, the person aggrieved by the nuisance shall give to that person such notice in writing of his intention to bring the proceedings as is applicable to proceedings in respect of a nuisance of that description and the notice shall specify the matter complained of.

(7) The notice of the bringing of proceedings in respect of a statutory nuisance required by subsection (6) above which is applicable is—

(a) in the case of a nuisance falling within paragraph (g) or (ga) of section 79(1) above, not less than three days’ notice; and

(b) in the case of a nuisance of any other description, not less than twenty-one days’ notice;

but the Secretary of State may, by order, provide that this subsection shall have effect as if such period as is specified in the order were the minimum period of notice applicable to any description of statutory nuisance specified in the order.

(8) A person who, without reasonable excuse, contravenes any requirement or prohibition imposed by an order under subsection (2) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale together with a further fine of an amount equal to one-tenth of that level one-tenth of the greater of £5,000 or level 4 on the standard scale for each day on which the offence continues after the conviction.

(9) Subject to subsection (10) below, in any proceedings for an offence under subsection (8) above in respect of a statutory nuisance it shall be a defence to prove that the best practicable means were used to prevent, or to counteract the effects of, the nuisance.

(10) The defence under subsection (9) above is not available—

(a) in the case of a nuisance falling within paragraph (a), (d), (e), (f) , (fa) or (g) of section 79(1) above except where the nuisance arises on industrial, trade or business premises;

(aza) in the case of a nuisance falling within paragraph (fb) of section 79(1) above except where—

(i) the artificial light is emitted from industrial, trade or business premises, or

(ii) the artificial light (not being light to which sub-paragraph (i) applies) is emitted by lights used for the purpose only of illuminating an outdoor relevant sports facility;

(aa) in the case of a nuisance falling within paragraph (ga) of section 79(1) above except where the noise is emitted from or caused by a vehicle, machinery or equipment being used for industrial, trade or business purposes;

(b) in the case of a nuisance falling within paragraph (b) of section 79(1) above except where the smoke is emitted from a chimney;

(d) in the case of a nuisance which is such as to render the premises unfit for human habitation.

(10A) For the purposes of subsection (10)(aza) “relevant sports facility” has the same meaning as it has for the purposes of section 80(8)(aza).

(11) If a person is convicted of an offence under subsection (8) above, a magistrates’ court or the sheriff may, after giving the local authority in whose area the nuisance has occurred an opportunity of being heard, direct the authority to do anything which the person convicted was required to do by the order to which the conviction relates.

(12) Where on the hearing of proceedings for an order under subsection (2) above it is proved that the alleged nuisance existed at the date of the making of the complaint or summary application, then, whether or not at the date of the hearing it still exists or is likely to recur, the court or the sheriff shall order the defendant or defender (or defendants or defenders in such proportions as appears fair and reasonable) to pay to the person bringing the proceedings such amount as the court or the sheriff considers reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings.

(13) If it appears to the magistrates’ court or to the sheriff that neither the person responsible for the nuisance nor the owner or occupier of the premises or (as the case may be) the person responsible for the vehicle, machinery or equipment can be found the court or the sheriff may, after giving the local authority in whose area the nuisance has occurred an opportunity of being heard, direct the authority to do anything which the court or the sheriff would have ordered that person to do.

Statutory nuisances: Scotland

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

83

Termination of existing controls over offensive trades and businesses

Termination of Public Health Act controls over offensive trades etc.

84

(1) Where a person carries on, in the area or part of the area of any local authority—

(a) in England or Wales, a trade which—

(i) is an offensive trade within the meaning of section 107 of the Public Health Act 1936 in that area or part of that area, and

(ii) constitutes a prescribed process designated for local control for the carrying on of which an authorisation is required under section 6 of this Act; or

(b) in Scotland, a business which—

(i) is mentioned in section 32(1) of the Public Health (Scotland) Act 1897 (or is an offensive business by virtue of that section) in that area or part of that area; and

(ii) constitutes a prescribed process designated for local control for the carrying on of which an authorisation is required under the said section 6,

subsection (2) below shall have effect in relation to that trade or business as from the date on which an authorisation is granted under section 6 of this Act or, if that person has not applied for such an authorisation within the period allowed under section 2(1) above for making applications under that section, as from the end of that period.

(2) Where this subsection applies in relation to the trade or business carried on by any person—

(a) nothing in section 107 of the Public Health Act 1936 or in section 32 of the Public Health (Scotland) Act 1897 shall apply in relation to it, and

(b) no byelaws or further byelaws made under section 108(2) of the said Act of 1936, or under subsection (2) of the said section 32, with respect to a trade or business of that description shall apply in relation to it;

but without prejudice to the continuance of, and imposition of any penalty in, any proceedings under the said section 107 or the said section 32 which were instituted before the date as from which this subsection has effect in relation to the trade or business.

(3) Subsection (2)(b) above shall apply in relation to the trade of fish frying as it applies in relation to an offensive trade.

(4) When the Secretary of State considers it expedient to do so, having regard to the operation of Part I and the preceding provisions of this Part of this Act in relation to offensive trades or businesses, he may by order repeal—

(a) sections 107 and 108 of the Public Health Act 1936; and

(b) section 32 of the Public Health (Scotland) Act 1897;

and different days may be so appointed in relation to trades or businesses which constitute prescribed processes and those which do not.

(5) In this section—

“prescribed process” has the same meaning as in Part I of this Act; and

“offensive trade” or “trade” has the same meaning as in section 107 of the Public Health Act 1936.

Application to gases of certain Clean Air Act provisions

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

85

Part IV — Litter Etc

Provisions relating to litter

Preliminary.

86

(1) The following provisions have effect for the purposes of this Part.

(2) In England and Wales the following are “principal litter authorities”—

(a) a county council,

(aa) a county borough council,

(b) a district council,

(d) the Common Council of the City of London, and

(e) the Council of the Isles of Scilly;

but the Secretary of State may, by order, designate other descriptions of local authorities as litter authorities for the purposes of this Part; and any such authority shall also be a principal litter authority.

(3) In Scotland the following are “principal litter authorities”—

(a) a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994

(4) Subject to subsection (8) below, land is “relevant land” of a principal litter authority if, not being relevant land falling within subsection (7) below, it is open to the air and is land (but not a highway or in Scotland a public road) which is under the direct control of such an authority to which the public are entitled or permitted to have access with or without payment.

(5) Land is “Crown land” if it is land—

(a) occupied by the Crown Estate Commissioners as part of the Crown Estate,

(b) occupied by or for the purposes of a government department or for naval, military or air force purposes, or

is “relevant Crown land” if it is Crown land which is open to the air and is land (but not a highway or in Scotland a public road) to which the public are entitled or permitted to have access with or without payment; and “the appropriate Crown authority” for any Crown land is the Crown Estate Commissioners, the Minister in charge of the government department or the body which occupies or manages the land on the Crown’s behalf, as the case may be.

(6) Subject to subsection (8) below, land is “relevant land” of a designated statutory undertaker if it is land which is under the direct control of any statutory undertaker or statutory undertaker of any description which may be designated by the Secretary of State, by order, for the purposes of this Part, being land to which the public are entitled or permitted to have access with or without payment or, in such cases as may be prescribed in the designation order, land in relation to which the public have no such right or permission.

(7) Subject to subsection (8) below, land is “relevant land” of a designated educational institution if it is open to the air and is land which is under the direct control of the governing body of or, in Scotland, of such body or of the education authority responsible for the management of, any educational institution or educational institution of any description which may be designated by the Secretary of State, by order, for the purposes of this Part.

(8) The Secretary of State may, by order, designate descriptions of land which are not to be treated as relevant Crown land or as relevant land of principal litter authorities, of designated statutory undertakers or of designated educational institutions or of any description of any of them.

(9) Every highway maintainable at the public expense other than a trunk road which is a special road is a “relevant highway” and the local authority which is, for the purposes of this Part, “responsible” for so much of it as lies within its area is, subject to any order under subsection (11) below—

(a) in Greater London, the council of the London borough or the Common Council of the City of London;

(b) in Englandoutside Greater London, the council of the district;

(bb) in Wales, the council of the county or county borough; and

(10) In Scotland, every public road other than a trunk road which is a special road is a “relevant road” and the local authority which is, for the purposes of this Part, “responsible” for so much of it as lies within theirarea is, subject to any order under subsection (11) below, the council constituted under section 2 of the Local Government etc. (Scotland) Act 1994.

(11) The Secretary of State may, by order, as respects relevant highways or relevant roads, relevant highways or relevant roads of any class or any part of a relevant highway or relevant road specified in the order, transfer the responsibility for the discharge of the duties imposed by section 89 below from the local authority to the highway or roads authority; but he shall not make an order under this subsection unless—

(a) (except where he is the highway or roads authority) he is requested to do so by the highway or roads authority;

(b) he consults the local authority; and

(c) it appears to him to be necessary or expedient to do so in order to prevent or minimise interference with the passage or with the safety of traffic along the highway or, in Scotland, road in question;

and where, by an order under this subsection, responsibility for the discharge of those duties is transferred, the authority to which the transfer is made is, for the purposes of this Part, “responsible” for the highway, road or part specified in the order.

(12) Land is “relevant land within a litter control area of a local authority” if it is land included in an area designated by the local authority under section 90 below to which the public are entitled or permitted to have access with or without payment.

(13) A place on land shall be treated as “open to the air” notwithstanding that it is covered if it is open to the air on at least one side.

(14) The Secretary of State may, by order, apply the provisions of this Part which apply to refuse to any description of animal droppings in all or any prescribed circumstances subject to such modifications as appear to him to be necessary.

(15) Any power under this section may be exercised differently as respects different areas, different descriptions of land or for different circumstances.

Offence of leaving litter.

87

(1) A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.

(2) This section applies to any place in the area of a principal litter authority which is open to the air, subject to subsection (3) below.

(3) This section does not apply to a place which is “open to the air” for the purposes of this Part by virtue of section 86(13) above if the public does not have access to it, with or without payment.

(4) It is immaterial for the purposes of this section whether the litter is deposited on land or in water.

(4A) No offence is committed under subsection (1) above where the depositing of the litter is—

(a) authorised by law; or

(b) done by or with the consent of the owner, occupier or other person having control of the place where it is deposited.

(4B) A person may only give consent under subsection (4A)(b) above in relation to the depositing of litter in a lake or pond or watercourse if he is the owner, occupier or other person having control of—

(a) all the land adjoining that lake or pond or watercourse; and

(b) all the land through or into which water in that lake or pond or watercourse directly or indirectly discharges, otherwise than by means of a public sewer.

(4C) In subsection (4B) above, “lake or pond”, “watercourse” and “public sewer” have the same meanings as in section 104 of the Water Resources Act 1991.

(4D) No proceedings may be instituted for an offence under subsection (1) which is a littering offence in respect of a vehicle within the meaning of section 88A(2) if—

(a) a penalty notice has been given under section 88A to the keeper of the vehicle in respect of which the offence was committed, and

(b) the fixed penalty has been paid or recovered in full.

(5) A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(6) A local authority, with a view to promoting the abatement of litter, may take such steps as the authority think appropriate for making the effect of subsection (5) above known to the public in their area.

(7) In any proceedings in Scotland for an offence under this section it shall be lawful to convict the accused on the evidence of one witness.

Fixed penalty notices for leaving litter.

88

(1) Where on any occasion an authorised officer of a litter authority finds a person who he has reason to believe has on that occasion committed an offence under section 87 above in the area of that authority, he may give that person a notice offering him the opportunity of discharging any liability to conviction for that offence by payment of a fixed penalty.

(2) Where a person is given a notice under this section in respect of an offence—

(a) no proceedings shall be instituted for that offence before the expiration of fourteen days following the date of the notice; and

(b) he shall not be convicted of that offence if he pays the fixed penalty before the expiration of that period.

(3) A notice under this section shall give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence and shall state—

(a) the period during which, by virtue of subsection (2) above, proceedings will not be taken for the offence;

(b) the amount of the fixed penalty; and

and, without prejudice to payment by any other method, payment of the fixed penalty may be made by pre-paying and posting to that person at that address a letter containing the amount of the penalty (in cash or otherwise).

(4) Where a letter is sent in accordance with subsection (3) above payment shall be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.

(5) The form of notices under this section shall be such as the Secretary of State may by order prescribe.

(6) The fixed penalty payable in pursuance of a notice under this section is payable to the litter authority whose authorised officer gave the notice.

(6A) The amount of a fixed penalty payable in pursuance of a notice under this section—

(a) is the amount specified by a principal litter authority in relation to its area (whether the penalty is payable to that or another authority), or

(b) if no amount is so specified, is—

(i) in England, £100, or

(ii) in Wales, £75.

(6B) The reference in subsection (6A) above to a principal litter authority does not include an English county council for an area for which there is also a district council.

(7) The litter authority to which a fixed penalty is payable under this section may make provision for treating it as having been paid if a lesser amount is paid before the end of a period specified by the authority.

(8) In any proceedings a certificate which—

(a) purports to be signed by or on behalf of—

(i) in England and Wales, the chief finance officer of the litter authority; or

(ii) in Scotland, the proper officer; and

(b) states that payment of a fixed penalty was or was not received by a date specified in the certificate,

shall be evidence of the facts stated.

(8A) If an authorised officer of a litter authority proposes to give a person a notice under this section, the officer may require the person to give him his name and address.

(8B) A person commits an offence if—

(a) he fails to give his name and address when required to do so under subsection (8A) above, or

(b) he gives a false or inaccurate name or address in response to a requirement under that subsection.

(8C) A person guilty of an offence under subsection (8B) above is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(9) For the purposes of this section the following are “litter authorities”—

(a) any principal litter authority, other than an English county council , a regional council or a joint board;

(b) any English county council , regional council or joint board designated by the Secretary of State, by order, in relation to such area as is specified in the order (not being an area in a National Park);

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) the Broads Authority.

(f) a parish or community council.

(10) In this section—

“authorised officer”, in relation to a litter authority, means—an employee of the authority who is authorised in writing by the authority for the purpose of giving notices under this section;any person who, in pursuance of arrangements made with the authority, has the function of giving such notices and is authorised in writing by the authority to perform that function; andany employee of such a person who is authorised in writing by the authority for the purpose of giving such notices;

“chief finance officer”, in relation to a litter authority, means the person having responsibility for the financial affairs of the authority;

. . .

. . .

“proper officer” means the officer who has, as respects the authority, the responsibility mentioned in section 95 of the Local Government (Scotland) Act 1973 (financial administration).

(11) The appropriate person may by regulations provide that—

(a) an authorised officer of a litter authority must meet such conditions as may be prescribed in the regulations;

(b) if an authorised officer of a litter authority fails to meet any such condition, the authority must revoke the officer’s authorisation.

(12) Regulations under subsection (11) may make different provision for different cases.

(13) Before making regulations under subsection (11), the appropriate person must consult such persons as the appropriate person thinks appropriate.

Littering from vehicles: civil penalty regime

88A

(1) The Secretary of State may make regulations under which the keeper of a vehicle may be required to pay a fixed penalty to a litter authority where there is reason to believe that a littering offence in England has been committed in respect of the vehicle.

(2) A littering offence is committed in respect of a vehicle if an offence under section 87(1) occurs as a result of litter being thrown, dropped or otherwise deposited from the vehicle (whether or not by the vehicle's keeper).

(3) Regulations under this section must make provision—

(a) setting the amount of fixed penalties or specifying how the amount is to be determined;

(b) about the period within which fixed penalties must be paid;

(c) for payment within that period of a fixed penalty imposed for a littering offence committed in respect of a vehicle to discharge any liability for conviction for the offence (whether on the part of the keeper or anybody else);

(d) for a fixed penalty to be payable by the keeper of a vehicle only if a written notice is given to the keeper (“a penalty notice”);

(e) about the persons authorised to give penalty notices;

(f) about the procedure to be followed in giving penalty notices;

(g) about the form and content of penalty notices;

(h) conferring rights to make representations about, and to bring appeals against, penalty notices.

(4) Provision under subsection (3)(e) may authorise a person to give a penalty notice for a littering offence committed in respect of a vehicle only if—

(a) the person is under a duty under section 89(1) in respect of the land where the offence is committed (and that person is a “litter authority” in relation to a fixed penalty payable under the regulations), or

(b) the person is an authorised officer of a litter authority,

and regulations under this section may include provision about the meaning of “authorised officer”.

(5) Regulations under this section may include provision—

(a) for the enforcement of penalty notices (and such provision may in particular authorise an unpaid fixed penalty to be recovered summarily as a civil debt or as if payable under an order of a court if the court so orders);

(b) about the application of sums paid under penalty notices (and such provision may in particular authorise sums paid to a litter authority to be applied for the purposes of such functions of the authority as the regulations may specify);

(6) Regulations under this section may, in consequence of any provision contained in the regulations, amend—

(a) this Part, or

(b) Part 2 of the London Local Authorities Act 2007.

(7) Regulations under this section may—

(a) make provision corresponding or similar to any provision made by or under section 88;

(b) make provision subject to exceptions;

(8) Provision of the kind mentioned in subsection (7)(a) may include provision—

(a) conferring a discretion on a litter authority, subject to such constraints or limitations as the regulations may specify (whether or not of a corresponding or similar kind to those mentioned in section 97A(2));

(b) creating an offence of the kind mentioned in section 88(8B) and (8C),

but may not include provision conferring power on a person to make orders or regulations.

(9) In this section—

“keeper”, in relation to a vehicle, means the person by whom the vehicle is kept at the time when the littering offence in question occurs, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper;

“litter authority” has the meaning given in subsection (4)(a);

“registered keeper”, in relation to a registered vehicle, means the person in whose name the vehicle is registered;

“registered vehicle” means a vehicle which is for the time being registered under the Vehicle Excise and Registration Act 1994;

“vehicle” means a mechanically-propelled vehicle or a vehicle designed or adapted for towing by a mechanically-propelled vehicle.

Guidance on littering enforcement in England and Wales

88B

(1) The appropriate person may issue guidance to litter authorities on the exercise of littering enforcement functions by those authorities and authorised officers of those authorities.

(2) A litter authority must have regard to that guidance when exercising any of its littering enforcement functions.

(3) The appropriate person may revise any guidance issued under this section at any time.

(4) Before issuing guidance, or revised guidance, under this section the appropriate person must consult such persons as the appropriate person thinks appropriate.

(5) The Secretary of State must lay before Parliament and publish guidance, and any revised guidance, issued by the Secretary of State under this section.

(6) The Welsh Ministers must lay before Senedd Cymru and publish guidance, and any revised guidance, issued by the Welsh Ministers under this section.

(7) In this section—

“authorised officer”, in relation to a litter authority, means a person who is an authorised officer in relation to that authority for the purposes of—section 88 (fixed penalty notices for littering, see subsection (10) of that section),section 88A (fixed penalty notices for littering from vehicles in England, see subsection (4) of that section), orSchedule 3A (distribution of free printed matter, see paragraph 8 of that Schedule);

“littering enforcement function” means—any function of a litter authority, or of an authorised officer of that authority, conferred by or under sections 87 to 88A or Schedule 3A, orany function exercised for purposes connected with any of those sections or that Schedule.

Littering from a vehicle: Scottish civil penalty regime

88C

(1) An authorised officer of a litter authority may impose a civil penalty charge on the keeper of a vehicle if satisfied on the balance of probabilities that—

(a) an offence of leaving litter under section 87 (“an act of littering”) has been committed from the vehicle, and

(b) the vehicle was on land within the litter authority’s area at the time that the act of littering was committed.

(2) For the purposes of this section, the keeper of a vehicle—

(a) means the person by whom the vehicle is kept at the time when an act of littering occurs, and

(b) in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper.

(3) The keeper's liability to pay a civil penalty charge notice to the authority arises when an authorised officer of a litter authority gives to the keeper written notice requiring payment of the charge (“a civil penalty charge notice”).

(4) No civil penalty charge notice may be given—

(a) after the end of the period of 3 months beginning with the day on which the act of littering in question occurred, or

(b) if action has been taken under section 87 or section 88 against a person in respect of the same act of littering, regardless of—

(i) whether or not the person is the vehicle’s keeper,

(ii) whether or not the action is ongoing,

(iii) the outcome of the action.

(5) The Scottish Ministers may by regulations make provision—

(a) for the amount that may be imposed as a civil penalty charge,

(b) for discounts and surcharges,

(d) about the form and content of a civil penalty charge notice,

(e) about the procedure to be followed in giving a civil penalty charge notice,

(f) conferring rights to make representations about and to bring an appeal against a civil penalty charge notice,

(g) about the circumstances in which a civil penalty charge notice may or must be cancelled,

(h) about the procedure to be followed in cancelling a civil penalty charge notice,

(i) about the refund of sums paid by way of civil penalty charge,

(j) about exemptions from liability,

(k) whether and how an authority must keep and publish accounts in respect of sums received by way of civil penalty charge.

(6) In this section—

an “authorised officer” means an employee of a litter authority who is authorised in writing by the authority for the purposes of imposing civil penalty charges under this section,

“litter authority” means—a local authority,Loch Lomond and the Trossachs National Park Authority, orsuch other person as may be specified in regulations by the Scottish Ministers,

“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994,

“registered keeper”, in relation to a registered vehicle, means the person in whose name the vehicle is registered under the Vehicle Excise and Registration Act 1994,

“registered vehicle” means a vehicle which is registered under that Act,

“vehicle” means a mechanically-propelled vehicle or a vehicle designed or adapted for towing by a mechanically-propelled vehicle.

Littering from a vehicle: consequences of civil penalty charge notice under section 88C

88D

(1) No action may be taken under section 87 or section 88 against a person in respect of an act of littering for which a civil penalty charge notice has been given and paid in full, regardless of whether or not the person who paid it is the vehicle’s keeper.

(2) After the end of the period of 28 days beginning with the day on which a civil penalty charge notice is given, any unpaid amount of the charge may be recovered in like manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff for any sheriffdom.

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